Australia: Mining: The Regulation of Exploration & Extraction:

Mining industry

1 What is the nature and importance of the
mining industry?

The mining industry is one of Australia's most important
export sectors and makes a significant economic and social
contribution to the Australian economy. Mining and minerals
activity currently comprises 8 per cent of the Australian economy
and 40 per cent of exports. The mineral and minerals processing
sector has contributed over A$500 billion directly to
Australia's wealth over the past two decades, supporting more
than 320,000 Australians.

Australia currently has one of the largest mineral sectors by
value of production in the world. The Australian mining industry
has benefited from a global boom in demand for minerals in recent
years, and is expanding, as a result of a high demand for raw
materials from China and other parts of Asia. Australia has the
world's largest reserves of lead, nickel, uranium and zinc. It
is the world's leading producer of bauxite, alumina and diamond
(by volume), the secondlargest producer of uranium, lead, zinc and
nickel, and the third largest producer of iron ore, silver,
magnesium and gold.

Australia is also a world leader in developing and exporting
mining equipment, services and technologies.

Legal and regulatory structure

2 Is the legal system civil or common
law-based?

The Australian system is common law-based. Its laws are based on
a combination of legislation made by parliament and decisions made
by an independent judicial system that adheres to the rule of law
and due process.

Laws are made and regulated by three tiers of government
– federal, state and territory, and local government. The
federal government (the Commonwealth) represents a federation of
the six Australian states (New South Wales, South Australia,
Queensland, Tasmania, Victoria and Western Australia) and the
Commonwealth's territories (including the Northern Territory
and Australian Capital Territory). The Commonwealth has the power
to make laws under the Australian Constitution. The Commonwealth
has power to legislate in areas such as corporations, taxation,
native title, overseas trade, trade practices, foreign investment
and foreign affairs. However, using such power, the Commonwealth
also legislates on broader issues including environmental issues
and native title.

The state and territory governments are given broad legislative
power under their respective constitutions. Areas such as mining,
roads and traffic, environment, health and criminal law are
regulated primarily by laws at this level.

Local governments are established by state or territory
legislation. Local governments typically make and enforce
regulations in relation to building and development, town planning,
local amenities, environment and land use within their local
government areas.

3 How is the mining industry regulated?

Minerals and the mining industry are regulated at the state and
territory level. Each state or territory has its own legislation
relating to minerals found onshore and offshore within coastal
waters.

Nevertheless, some Commonwealth laws may affect the mining
industry because the Commonwealth legislates over areas such as
corporations, competition and trade practices, interstate and
overseas trade, taxation, and defence and foreign affairs.

Mining companies listed on the Australian Securities Exchange
(ASX) must also comply with the ASX Listing Rules.

4 What are the principal laws that regulate
the mining industry? What are the principal regulatory bodies that
administer those laws?

Each state has a Mining Act and Mining Regulations (or
equivalent) that regulate the ownership of minerals and operation
of mining activities in that state. The states have other laws
dealing with areas such as mine operation, mine inspection,
occupational health and safety, environment, and planning. The
government department administering mining law in each state
administers and sets out guidelines and policy statements relating
to state mining legislation.

5 What classification system does the mining
industry use for reporting mineral resources and mineral
reserves?

The Australian mining industry uses the Australasian Code for
Reporting of Exploration Results, Mineral Resources and Ore
Reserves (the JORC Code) for public reporting (eg, annual reports
and analyst reports). The JORC Code is published by the
Australasian Institute of Mining and Metallurgy, Australian
Institute of Geoscientists and Minerals Council of Australia.

The JORC Code is applicable to all solid minerals, including
diamonds, other gemstones, industrial minerals and coal. The JORC
Code requires reporting on the company's mineral resources
under quantities known as 'mineral resources' or 'ore
reserves'. The classification of the mineral resource depends
upon the quantity, distribution and quality of data available and
the level of confidence that attaches to such data.

A 'mineral resource' is an occurrence of a mineral
material of intrinsic economic interest that has reasonable
prospects for eventual economic extraction. The location, quantity,
grade, geological characteristics and continuity of a mineral
resource must be known, estimated or interpreted from specific
geological evidence and knowledge. Mineral resources are
subdivided, in order of increasing geological confidence, into
inferred, indicated and measured mineral resources.

An 'ore reserve' is the economically mineable part of a
measured or indicated mineral resource and is subdivided, in order
of geological confidence, into a 'probable ore reserve' or
a 'proved ore reserve'.

Although the JORC Code applies to the reporting of mineral
resources and ore reserves by all public companies, the ASX Listing
Rules also expressly require any report by an ASX-listed company on
its exploration results, mineral resources or mineral reserves to
comply with the JORC Code.

Mining rights and title

6 Who has title to metallic minerals in the
ground?

The Crown owns all minerals in the land. Common law presumes
that a landowner also owns all minerals on or beneath the surface
of that land. However, this principle has been virtually abolished
by statute in Australia and all new grants of freehold titles in
Australia have provided that all minerals are reserved to the
Crown. A very small percentage of minerals in Australia are owned
by those who were granted titles to the land before enactment of
relevant state legislation excluding mineral ownership.

Any mineral that is lawfully mined becomes the property of the
person by or on behalf of whom it is mined at the time the material
from which it is recovered is severed from the land from which it
is mined. Until lawfully mined, minerals remain the property of the
Crown.

7 What information and data is publicly
available to private parties that wish to engage in mining
activities?

Each department also offers the public access to mining
information databases which allow the public to view mining
reports, maps, surveys, geoscientific data, exploration and
tenement information in that state. Many of these services are
available online (see, for example, www.dpi.nsw.gov.au/minerals
).

A large number of articles and research papers on mining
companies and the mining industry generally are published in
industry journals, analyst reports or in other publications.

8 What mining rights may private parties
acquire? How are these acquired? What obligations does the rights
holder have?

A miner may obtain rights to conduct mining activities on
unreserved Crown land or on private land where the permission of
the landowner has been granted. The specific mining rights that
miners may acquire differ slightly in each state or territory, but
the rights are based upon the three basic stages of development of
a mine: initial exploration, further detailed exploration and
assessment, and production.

Holders of mining rights may also have ancillary rights that
relate to those mining activities, such as public road access,
access to water and setting up crushing, sizing and grading
facilities on the land surface.

Mining rights may be acquired from the applicable state
department generally through an application process on a
first-come, first served basis, or in some instances, a
tender-based process. Mining rights may also be acquired by
entering into a contractual arrangement with the holder of the
mining right. Rights to access the surface are regulated both by
legislation and by private contract with landowners.

Mining right holders will generally have obligations such as
payment of rent and royalties, compliance with work programmes,
mine rehabilitation and reporting requirements (for example,
exploration activities and mining expenditure).

9 Is there any distinction between the mining
rights that may be acquired by domestic parties and those that may
be acquired by foreign parties?

No. However, a major acquisition of assets by a foreign company
may require the approval of the Australian treasurer, through the
Foreign Investment Review Board. The Foreign Investment Review
Board has the power to block proposals that are required to be
notified to it and which are determined to be 'contrary to the
national interest'.

A proposed acquisition by a foreign company of an asset or
company valued at over A$231 million (a higher threshold of A$1004
million applies to acquisitions by US companies) must be notified
to the Foreign Investment Review Board.

There are also notification requirements below this threshold if
investment is in a prescribed sensitive sector; the extraction of
(or the holding of rights to extract) uranium or plutonium is one
such sector.

10 How are mining rights protected?

The legislation of each state prohibits prospecting or mining
minerals otherwise than in accordance with the terms of a valid
mining tenement. As a general rule, mining rights may not be
granted to third parties over land that is subject to an existing
mining tenement, unless the holder of the existing mining right
gives consent. These and other mining rights can be protected or
enforced through an independent judicial system. A mining court or
tribunal has been set up in each state or territory, and is given
the jurisdiction to determine all suits concerning mining tenements
and may exercise any other jurisdiction vested by the particular
state and territory regulation. Mining rights obtained through
contractual arrangements are also protected under contract law.

11 How do the rights of aboriginal, indigenous
or currently or previously disadvantaged peoples affect the
acquisition or exercise of mining rights?

Aboriginal land interests (native title) are a sui generis
concept uniquely acknowledged at common law and the Native Title
Act 1993 (Cth) provides the methods and procedures for dealing with
such title.

Native title can affect timing of a grant of a mining tenement.
Aboriginal groups may claim to hold native title on land subject to
a mining application (it is unnecessary for the group to prove they
hold native title). These groups are entitled to negotiate with the
applicant in relation to issues such as land use, access and
compensation. Under the 'right to negotiate' procedure,
mining tenements cannot be granted unless the native-title
claimants consent or the National Native Title Tribunal otherwise
determines.

Aboriginal ethnographic and archaeological sites are also
protected under state and Commonwealth legislation (collectively
known as cultural heritage).

12 What surface rights may private parties
acquire? How are these rights acquired?

A holder of mineral rights is generally given rights on the land
surface to carry out mining purposes. These rights may depend upon
the stage of the mining operation, and may include rights to access
water and public roads; construct, maintain and use buildings,
plants, roads and railways; and conduct primary treatment
operations and other acts ancillary to mining.

Where the holder is seeking to engage in these ancillary
activities on private land, rights must be obtained from the
private landowners by means of purchases, leases, easements, etc.
The general laws of contract apply between private parties. Mining
legislation may also set out requirements for certain terms
relating to access and compensation arrangements with
landholders.

Duties, royalties and taxes

13 What duties, royalties and taxes are
payable by private parties carrying on mining activities? Are these
duties, royalties and taxes revenuebased or profit-based?

First, royalties are payable to the Crown on extraction of the
minerals. The amount and calculation of such royalties vary from
state to state and may include, for example, flat-rate royalties
(eg, on a 'cost per tonne' basis), ad valorem royalties
(based on a percentage of the total value of minerals recovered,
ranging from 2.5 to 8.2 per cent) and profit-based royalties
(applied in some states to all minerals, such as Tasmania and the
Northern Territory, and applied in some states to only certain
minerals, such as diamonds). The level and nature of royalties also
varies depending on the type of commodity and its location within
Australia. A number of state governments (including Queensland and
New South Wales) charge mining companies higher freight rates to
carry minerals compared with other commodities. In these cases,
mining freight subsidises the operation of government railways.

Second, private royalties may be payable, for example, in
circumstances where the mining rights have been transferred between
private parties subject to the payment of an ongoing private
royalty.

Third, general duties and taxes are payable in the same manner
as any other business within Australia, such as local government
rates and fees, stamp duty, goods and services tax, capital gains
tax or income tax. There is no general Australian government mining
legislation or specific taxation of mining products, although the
general duties and taxes include certain special provisions and
concessions for mining activities. However, please refer to the
comments in 'Update and trends' regarding the federal
government's recent announcement of plans to introduce a 40 per
cent mining tax on 'super profits'.

14 What tax advantages and incentives are
available to private parties carrying on mining activities?

A broad-based goods and services tax (GST) applied at the rate
of 10 per cent has been in operation since 1 July 2000.

The GST regime benefits industry, as GST-registered enterprises
are typically able to recover the GST paid on their business
inputs. Mining enterprises are not required to charge GST on goods
they export to overseas customers (which account for the bulk of
industry sales). However, careful consideration is required where
the enterprise supplies or receives certain financial supplies,
including, among others, forward contracts, options to buy or sell
foreign currency, commodity derivatives and security lending
arrangements as these transactions can give rise to restrictions on
recovery of GST on associated business inputs. There are also
special GST rules for domestic sales of precious metals.

Fuel tax credits commenced on 1 July 2006 as part of the
government's major programme of reform to modernise and
simplify the fuel taxation system. The previous system of fuel
grants, rebates and remissions has been substantially replaced with
a single fuel tax credit, claimable via a business activity
statement.

The Enhanced Project By-Law Scheme (EPBS) provides tariff duty
concessions on eligible goods for major products in the mining and
resource processing industries. Only eligible goods integral to the
project may be eligible for a tariff duty concession.

The major form of government assistance provided to the mining
industry is in the form of research and development via the CSIRO
Institute of Minerals, Energy and Construction. In addition, the
Australian Geographical Survey Organisation (part of the Department
of Industry, Science and Resources) is undertaking national
geoscientific mapping aimed at encouraging the sustainable
management and development of Australia's natural
resources.

Direct assistance in the form of export assistance and subsidies
is minimal.

The Regional Minerals Programme is designed to encourage a
coordinated regional approach in the development of new mines and
mineral processing, as well as to reduce industry costs and
increase the scope for investment.

15 Is there any distinction between the
duties, royalties and taxes payable by domestic parties and those
payable by foreign parties?

Although there is no obvious distinction between specific mining
taxes such as duties and royalties paid by domestic parties
compared to those paid by foreign parties, parties must consider
more general taxation matters such as withholding taxes, thin
capitalisation rules, double tax agreements and foreign tax
credits.

Business structures

16 What are the principal business structures
used by private parties carrying on mining activities?

Mining activities can be conducted by corporations, partnerships
or by way of joint venture; however, mining projects are most
commonly structured as joint ventures. The joint venture can either
be incorporated or unincorporated. An incorporated joint venture
uses a company as the project vehicle, and as such, is governed by
its constituent documents. The typical unincorporated joint venture
is governed by a joint venture agreement.

Financing

17 What are the principal sources of financing
available to private parties carrying on mining activities? What
role does the domestic public securities market play in financing
the mining industry?

Financing is one of the principal barriers to entry in mining,
which is a highly capital-intensive enterprise. Large sums of money
are required to construct mines and production facilities, and to
sustain the exploration and development needed to replenish
reserves. Project finance is extensively used in Australia for
mining- and exploration-related projects.

The domestic public securities market, by way of the ASX, lists
many publicly listed mining companies. Such listed companies seek
to raise the capital required to fund various mining activities
through their shareholders by undertaking capital raisings.

Restrictions and limitations

18 What restrictions and limitations are
imposed on the importation of machinery and equipment or services
required in connection with mining activities?

An import permit is required to import used agricultural,
earthmoving and mining machinery and can be assessed by the
regional offices of the Australian Quarantine and Inspection
Service. Also, all machinery imported into Australia requires a
cleanliness declaration which states that the machinery is clean
and free of all soil, plant and animal debris.

There are occupational health and safety laws in each state and
territory of relevance to the use of plant and equipment.

19 What restrictions and limitations are
imposed on the use of domestic and foreign employees in connection
with mining activities?

There are no general restrictions or limitations as to the use
of domestic employees. Foreign employees, however, must comply with
the visa restrictions imposed by the federal government.

As many mines are located in regional and low-population areas,
employers can be provided with special assistance so as to be able
to attract employees with an adequate set of skills.

20 What restrictions or limitations are
imposed on the processing, export or sale of metallic
minerals?

Other than export controls that exist for the sale of uranium,
there are no general restrictions or limitations imposed on the
processing, exporting or selling of metallic minerals.

21 What restrictions or limitations are
imposed on the import of funds for mining activities or the use of
the proceeds from the export or sale of metallic minerals?

Generally, foreign and Australian currency can be transferred in
and out of Australia without restriction. Virtually all exchange
controls in Australia have been removed.

There are no general restrictions or limitations in relation to
the use of the proceeds from the export or sale of metallic
minerals.

Environment, health and safety

22 What are the principal environmental,
health and safety laws applicable to the mining industry? What are
the principal regulatory bodies that administer those laws?

Environmental laws

Each state and territory has a detailed legislative and
regulatory regime relating to environmental conservation,
assessment, planning and land use. The environmental aspects of the
mining industry are generally administered by the relevant state
and territory environmental protection agency, the resources
department and local government. Most mining tenements will only be
granted after the relevant state department assesses the
environmental impacts of any proposed or potential mining activity.
Commonwealth laws will also apply to mining activities that will
impact on Commonwealth lands or national matters (for example,
national heritage-listed land or the Environment Protection and
Biodiversity Conservation Act 1999, which provides a planning
regime for obtaining consent for a project if it affects certain
Commonwealth land or threatened species).

Many Australian mining companies also adhere to international
standards such as ISO 14001 for Environmental Management Systems.
The Commonwealth Department of Resources, Energy and Tourism has
also published a set of guidelines on Best Practice on
Environmental Management in Mining. This is in the process of being
updated with the Leading Practice Sustainable Development Program
for the Mining Industry.

Mining health and safety

The principal health and safety laws applicable to the mining
industry are the occupational health and safety laws of each state
that apply to all industries. In addition, states may have
supplementary legislation dealing specifically with mining; for
example, mine inspection procedures and emergency management
systems. These laws are administered by the state department for
occupational health and safety together with the resources
department.

Various state mine-safety advisory councils provide
recommendations to the government to promote issues surrounding
occupational health and safety in mines.

23 What is the environmental review and
permitting process for a mining project? How long does it normally
take to obtain the necessary permits?

The mining company will prepare a proposal for mining
operations, along with the potential environmental impacts and how
they will be managed. The relevant government departments will then
decide whether the project is environmentally significant and the
extent of environmental assessment necessary (if at all) before
giving approval for the proposal. Assessment may involve public
environmental reports, environmental impact statements, community
consultation and public inquiries. The time it takes to obtain the
necessary permits will depend on whether the project is complex or
controversial. Mining tenements are ordinarily granted within six
months. If public consultation is needed then the time taken will
increase, with some projects taking several years for the necessary
permits to be obtained.

24 What is the closure and remediation process
for a mining project? What performance bonds, guarantees and other
financial assurances are required?

Mine operators must submit to the relevant department a detailed
remediation plan associated with its mining operations. In many
cases such plans must be submitted within one to two years of
commencing operations, and in some cases prior to commencing
operations. Obligations under these plans upon closure of a mining
plant are incorporated into the terms and conditions of the mining
tenement. The mine operator will generally be required to lodge a
security deposit with the department to guarantee the fulfilment of
their remediation obligations. The size of this deposit is
determined by the department and will depend on the size of the
proposed operation and the likely costs of remediation.

International treaties

25 What international treaties apply to the
mining industry or an investment in the mining industry?

Australia does not have international treaties applicable
specifically to the mining industry.

Australia has established free-trade agreements with New
Zealand, Singapore, Thailand, United States, the Association of
South- East Asian Nations (ASEAN) and Chile that have relevance to
the mining industry, and is negotiating similar agreements with
China, Japan, Malaysia, Korea and the Gulf Cooperation Council.
Australia also has double tax treaties with over 40 countries.

Update and trends

As the mining industry emerges from the global financial crisis
relatively unscathed in contrast to the world economy, industry
sentiment and investor confidence is increasing, encouraging
mineral exploration and project development in 2010. With commodity
prices rising and some of Australia's key market exports
nearing financial recovery, initial predictions for the industry in
2010 saw a surge in investment in mining sectors. However the
federal government's recent announcement of plans to increase
corporate mining taxes to 40 per cent on 'excess profits'
in 2012 (the Super Profits Tax) has resulted in significant
uncertainty over the viability of certain exploration activities in
Australia. Several of the country's largest mineral producers
have already announced plans to scale back their Australian
operations, a sentiment which will likely echo throughout the
industry, at least until the future of the tax is decided.

While the proposed Super Profits Tax has undermined the growing
confidence in investment in the mining industry, there is still an
underlying optimism that foreign investment in mining by emerging
nations such as China and India will escalate. Countries such as
these, which are continuing to modernise but lack domestic
reserves, are likely to look to invest in the prosperous Australian
mining industry to secure their local supply of natural resources.
While foreign investment in base metals and bulk commodities is
expected to rise, so is investment in mining infrastructure and
assets. Insufficient infrastructure is a significant problem in the
mining industry at present and poses an attractive option for
countries that are seeking to diversify their portfolios to
leverage negotiations for the supply of sought after minerals.
Early 2010 has already seen a series of moves by Chinese entities
to acquire stakes in Australian mining assets and it is expected
that China will maintain strong levels of investment in the
Australian mining sector throughout 2010.

The trends that have followed previous mining booms (the 1850s
gold rush, late 19th century mineral boom, 1960s and early 1970s
mineral and energy boom and the late 1970s and early 1980s energy
boom) indicate that increased investment in mining produces a
higher income derived from mining activities and a greater need for
mining infrastructure. Should this activity and spending eventuate,
Australia can expect increased inflationary pressures and a general
strengthening of the economy in the medium term future. It is
difficult to predict how closely the current mining boom will
follow historic trends in light of the proposed Super Profits Tax
as this is likely to be a significant element that may distinguish
the current boom from previous ones.

It is also likely that 2010 will see a resurgence of initial
public offers of mining exploration companies as capital markets
and investor confidence strengthens. Despite the uncertainty
regarding the Super Profits Tax by large mineral producers, the
current understanding is that small exploration companies that are
yet to realise substantial profits will be unaffected as the Super
Profits Tax is proposed to be imposed only on profits after
allowing for extraction costs, recouping capital investment and the
provision to shareholders of a normal return on their capital
investments. As a result, the prospect of the imposition of the
Super Profits Tax in the future is not expected to discourage
smaller exploration companies from proceeding with Australian
mining operations and accordingly, these companies are expected to
look to the capital markets for the requisite funding.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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and delivery address), and demographic information (such as postcode, age
level). Contact information will be used to notify the winners and award prizes.
Survey information will be used for purposes of monitoring or improving the
functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our
site, we ask them for the friend’s name and email address. Mondaq stores this
information and may contact the friend to invite them to register with Mondaq,
but they will not be contacted more than once. The friend may contact Mondaq to
request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’
information. When users submit sensitive information via the website, your
information is protected using firewalls and other security technology. If you
have any questions about the security at our website, you can send an email to
webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode),
or if a user no longer desires our service, we will endeavour to provide a way
to correct, update or remove that user’s personal data provided to us. This can
usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will
post those changes on our site so our users are always aware of what information
we collect, how we use it, and under what circumstances, if any, we disclose it.
If at any point we decide to use personally identifiable information in a manner
different from that stated at the time it was collected, we will notify users by
way of an email. Users will have a choice as to whether or not we use their
information in this different manner. We will use information in accordance with
the privacy policy under which the information was collected.

How to contact Mondaq

If for some reason you believe Mondaq Ltd. has not adhered to these
principles, please notify us by e-mail at problems@mondaq.com and we will use
commercially reasonable efforts to determine and correct the problem promptly.

By clicking Register you state you have read and agree to our Terms and Conditions